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Attorney General opinion sought on prosecutor issue

By Steven Friederich

Vidette Editor

The state Attorney General’s Office says that the Grays Harbor County commissioners don’t have the right to appoint whoever they want to the vacant prosecutor position. They must pick from a list of three names provided by the central committee of the Grays Harbor Democrats.

The informal opinion was issued on Wednesday after a request for legal guidance was sought by Acting Prosecutor Gerald Fuller.

Deputy Solicitor General Anne Egeler wrote the informal opinion and issued it right away because County Commission Chairman Frank Gordon had threatened to solicit his own names for prosecutor and create his own list if the Democrats didn’t give him a new list by Dec. 19.

Egeler said that a myriad of other legal opinions involving the prosecutor case will be issued in the future.

Fuller says that it’s been a complete guessing game on what the law is involving the prosecutor appointment because there’s no defining case laws for what’s been going on. That’s why he decided to utilize an official Attorney General’s Opinion about the next best thing than taking the issue through to a lawsuit and getting a judge’s ruling.

Fuller requested an official written opinion from Attorney General Bob Ferguson and his office to clear up the controversy that has emerged since Stew Menefee retired from his prosecutor position and the Democrats picked their three favorite candidates, acing out a credible candidate from the list, opting for Deputy Prosecutor Katie Svoboda, who wants the job, and Vini Samuel and George Smylie, who support Svoboda. The commissioners ultimately picked Samuel for the job, but she turned it down.

There are questions at this point if Gov. Jay Inslee is responsible for the appointment process, if the commissioners have the right to request a new list and if the Democrats have to provide one. And, if the Democrats refuse, what happens then? County Commission Chairman Frank Gordon has asserted the right of the commissioners to solicit their own list to appoint from. At any point, the legal landmines could turn this quagmire into a lawsuit haven.

“Article 2, Section 15 of the state Constitution provides no guidance in the situation that has arisen where a person appointed by the county legislative authority declines the appointment and is silent regarding any authority to demand or generate a new list,” Fuller states in a Dec. 10 letter to the Attorney General’s Office. “Our research has failed to come up with any case law guidance regarding these issues.”

A spokeswoman for Gov. Inslee said last week that the governor plans to stay on the sidelines at this stage of the appointment process.

Fuller asks the Attorney General to make an opinion of the following four questions:

1. Is the County Board of Commissioners legally and constitutionally entitled to demand a new list of nominees from the local Democratic Party and, if so, what is the source of that authority?

2. With the expiration of 60 days from the date of Mr. Menefee’s retirement and Ms. Samuel’s declining the board’s October 24 appointment, does the appointment fall to the Governor under article II, section 15 of the Washington constitution, or some other provision of Washington law?

3. May the county commissioners pick an individual not on a list supplied by the local county Democratic Party?

4. If the county commissioners appoint a person whose name is not on a list submitted by the county Democratic Party, will such a person appointed have legal authority to act as prosecuting attorney?

The state office officially received the notice on Dec. 12 and has left comments open from the public on the matter until Dec. 20. Comments must be sent by email to Deputy Solicitor General Jeff Even at Jeff.Even@atg.wa.gov.

Egeler decided to tackle the issue of the commissioners picking their own candidate by issuing an informal opinion on the matter now.

“When an elected prosecuting attorney position has become vacant in a non-charter county and the county central committee of the political party of the former prosecuting attorney has provided a list of three nominees to fill the vacancy, may the county commission appoint an individual who is not on that list to fill the vacancy?”

“No,” Egeler wrote. “… The person appointed by the county legislative authority must be from the same political party as the elective officer, who vacated the position and must be one of three persons nominated by the county central committee of the relevant party.”

In this case, Egeler said only authority the county commissioners have in picking a prosecutor is filling it on an interim basis, which they did when they appointed Fuller to the post back in October.

Egeler notes that if state law conflicts with a provision of the state Constitution, the Constitution’s verbiage trumps everything else; “It is void and unenforceable.”

“A formal opinion will be issued at a later date to address all of the questions you posed,” Egeler adds in her opinion.

Fuller says he’s not sure when exactly an opinion could take shape from the Attorney General’s Office. State Rep. Kevin Van De Wege asked for an opinion regarding fire district levies back in May and didn’t get an answer until September.

Five months from now, if the prosecutor position is still in the air, the county election’s filing period may have already begun. Svoboda is the only candidate to file paperwork with the Public Disclosure Commission declaring herself a candidate. She’s already raised nearly $1,000. She would be the first female prosecutor in county history.

“This is really new ground,” Gordon says. “The law, the Constitution stops at where we’re at right now in the process. We’re just doing the best that we can at this point.”

Democrats have called on Gordon to just appoint Svoboda and end the debate. The commissioners have declined to do that.

Gordon issued his own letter to the Attorney General’s Office.

“The commissioners have followed the law step by step,” Gordon wrote. “As a Grays Harbor County commissioner, I am concerned with the process of appointing a new prosecuting attorney. While following all applicable laws, the party has been trying to go around the spirit of the law. The Democratic Party has used the law to try and give the commissioners only one choice for the vacant position by having two other candidates on the list of three nominees that do not want the position and are willing to step aside to leave the commissioners with no choice but the one candidate the party chose.”

When Samuel declined the position on Nov. 27, Gordon says the 60-day clock started over.

“Dictatorships have a puppet legislature; we are a Democratic nation that is supposed to represent all the people equally,” Gordon wrote. “We have followed the law and now hope with your help we can represent all the people of the county, not just the leaders of one party.”

When The Vidette met with Attorney General Ferguson back in late October, he said he was aware of the situation going on with the Prosecutor’s Office, but was trying to keep a neutral perspective.

Ferguson did note that when he was on the King County Council, it had become practice for the political parties from both sides to put their favorite candidate on a list with two other candidates that didn’t really want the job. He had seen it happen before.

Meantime, Smylie, who is also the chairman of the Grays Harbor Democrats, has submitted an exhaustive public records request with the county commissioners in an effort to figure out what attorneys have been giving Gordon legal advice. Gordon has said he’s had conversations with other attorneys, but has declined to name who. Smylie’s records requests seeks memos, appointments, emails and just about every scrap of paper Gordon could have generated, included metadata for email messages, from June of this year to present day.

Gordon says he expects a new list from the Democrats by the end of this week.

Last week, the Democrats told Gordon not to expect any kind of answer until January at the earliest, when the Democrats will be able to gather.

“Expecting an attorney to be a placeholder, then not run for it, isn’t asking for the best person for the job,” Smylie wrote to the county commissioners. “It’s begging for mediocrity. We have provided the county commissioners a list of three qualified candidates. If one declines, you have two more candidates to consider. It is a list to exhaustion.”